1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 LOUREECE STONE CLARK, Case No. 22-cv-02962-JSC

8 Plaintiff, ORDER OF DISMISSAL WITH LEAVE

TO AMEND

v. 9

10 MARK H. GOLDSTEIN, et al., Defendants. 11

12 13 INTRODUCTION 14 Plaintiff, an inmate in the Marin County Jail who is proceeding without representation by 15 an attorney, filed this civil rights complaint under 42 U.S.C. § 1983 against Marin County 16 officials. Plaintiff’s application to proceed in forma pauperis is granted in a separate order. For 17 the reasons explained below, the complaint is DISMISSED with leave to amend. 18 STANDARD OF REVIEW 19 Federal courts must engage in a preliminary screening of cases in which prisoners seek 20 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 21 1915A(a). The Court must identify cognizable claims or dismiss the complaint, or any portion of 22 the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which relief 23 may be granted,” or “seeks monetary relief from a defendant who is immune from such relief.” Id. 24 § 1915A(b). Pleadings filed by litigants unrepresented by an attorney must be liberally construed. 25 Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). 26 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 27 claim showing that the pleader is entitled to relief.” “Specific facts are not necessary; the 1 which it rests.” Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) (citations omitted). Although to 2 state a claim a complaint “does not need detailed factual allegations, . . . a plaintiff’s obligation to 3 provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a 4 formulaic recitation of the elements of a cause of action will not do. . . . Factual allegations must 5 be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 6 127 S. Ct. 1955, 1964-65 (2007) (citations omitted). A complaint must proffer “enough facts to 7 state a claim for relief that is plausible on its face.” Id. at 1974. 8 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two elements: (1) that a 9 right secured by the Constitution or laws of the United States was violated, and (2) that the alleged 10 violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 11 42, 48 (1988). 12 LEGAL CLAIMS 13 In his first claim, Plaintiff alleges that Defendants Mark Goldstein and James Kim of the 14 Marin County Sherriff’s Department, and Shelly Scott in the Marin County Recorder’s Office, 15 conspired in the murder of his son. Parents and children possess a constitutionally protected 16 liberty interest in companionship and society with each other. Smith v. City of Fontana, 818 F.2d 17 1411, 1418 (9th Cir. 1987), overruled on other grounds by Hodgers-Durgin v. de la Vina, 199 18 F.3d 1037 (9th Cir. 1999) (en banc). This liberty interest is rooted in the Fourteenth Amendment, 19 which states in relevant part that “[n]o State shall . . . deprive any person of life, liberty, or 20 property, without due process of law.” U.S. Const. amend. XIV, § 1. The protected liberty interest 21 is independently held by both parent and child. City of Fontana, 818 F.2d at 1418. A parent’s 22 right includes a custodial interest (but only while the child is a minor), and a companionship 23 interest (even after a child reaches the age of majority). Id. at 1419; see, e.g., Strandberg v. City of 24 Helena, 791 F.2d 744, 748 n.1 (9th Cir. 1986) (recognizing that parents of deceased 22-year-old 25 son could not allege constitutional right to parent a minor child, but could claim violation of right 26 to companionship and society). State interference with these liberty interests may give rise to a 27 Fourteenth Amendment due process claim that is cognizable under 42 U.S.C. § 1983. Kelson v. 1 The problem with this claim is that Plaintiff does not describe how each of these 2 Defendants were involved in his son’s death. A person deprives another of a constitutional right 3 within the meaning of Section 1983 if he does an affirmative act, participates in another's 4 affirmative act, or omits to perform an act which he is legally required to do, that causes the 5 deprivation of which the plaintiff complains. Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988). 6 At the pleading stage, "[a] plaintiff must allege facts, not simply conclusions, that show that an 7 individual was personally involved in the deprivation of his civil rights." Barren v. Harrington, 8 152 F.3d 1193, 1194 (9th Cir. 1998). Plaintiff has not alleged what Defendants Goldstein, Kim, 9 and Scott did or failed to do that caused his son to die, nor has he alleged how his son died. As a 10 result, he has not alleged a valid claim against them. If he wants to proceed with a claim against 11 these Defendants, he must file an amended complaint in which he alleges specific facts showing 12 what each of these Defendants did or failed to do, and how those actions or omissions caused his 13 son to die. 14 In his second claim, Plaintiff alleges that Defendant Robert Doyle caused him to be falsely 15 arrested and imprisoned; he seeks to “eliminate false arrest and false imprisonment.” (ECF No. 1 16 at 2-3.) If he is seeking release from custody or to vacate his conviction or sentence, he must do 17 so in a petition for a writ of habeas corpus, not a civil rights suit. See Skinner v. Switzer, 562 U.S. 18 521, 533-34 (2011) (habeas is the “exclusive remedy” for the prisoner who seeks “‘immediate or 19 speedier release’” from confinement) (quoting Wilkinson v. Dotson, 544 U.S. 74, 82 (2005)). If he 20 is seeking money damages for false arrest and/or false imprisonment, he must first show that his 21 conviction and sentence have been vacated, overturned on appeal, or otherwise invalidated. See 22 Guerrero v. Gates, 442 F.3d 697, 703 (9th Cir. 2006) (Heck v. Humphrey, 512 U.S. 477, 486-487 23 (1994), barred plaintiff’s claims of wrongful arrest, malicious prosecution and conspiracy to bring 24 false charges against him until conviction has been invalidated); Cabrera v. City of Huntington 25 Park, 159 F.3d 374, 380 (9th Cir. 1998) (Heck barred plaintiff's false arrest and imprisonment 26 claims until conviction was invalidated). Plaintiff is granted leave to file an amended complaint to 27 allege that his conviction and sentence have been invalidated --- if in fact they have --- and to 1 In his request for relief, he seeks the arrest of “‘all public officials,” including Defendant 2 || Goldstein. (ECF No. | at 3.) The Court does not have the authority to order the parties or other 3 individuals arrested based upon the violation of Plaintiffs civil rights. Such relief must be sought 4 from local, state, or federal law enforcement officials, not the federal court. If Plaintiff files an 5 amended complaint, he may not include this request for relief. 6 CONCLUSION 7 For the reasons explained above, 8 1. The complaint is DISMISSED WITH LEAVE TO AMEND. The amended complaint 9 must include the caption and civil case number used in this order (No. C 22-2962 JSC (PR)) and 10 || the words “COURT-ORDERED FIRST AMENDED COMPLAINT” on the first page. Because 11 an amended complaint completely replaces the original complaint, see Ferdik v. Bonzelet, 963 12 || F.2d 1258, 1262 (9th Cir. 1992), Plaintiff may not incorporate material from the original by 5 13 || reference; he must include in his amended complaint all the claims he wishes to pursue, including 14 his first claim regarding the alleged murder of his son. If Plaintiff fails to file an amended 3 15 complaint within the designated time, or if the amendment is not sufficient, this case will be a 16 || dismissed. 3 17 2. It is Plaintiff's responsibility to prosecute this case. Plaintiff must keep the Court S 18 || wformed of any change of address by filing a separate paper with the clerk headed “Notice of 19 || Change of Address.” He also must comply with the Court's orders in a timely fashion. Failure to 20 || do so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of 21 Civil Procedure 41(b). Reasonable requests for an extension of a deadline will be allowed upon a 22 showing of good cause if the request is filed prior to the deadline. 23 IT IS SO ORDERED. 24 || Dated: September 13, 2022

26 ne

ACQUELINE SCOTT CORLE

27 United States District Judge 28